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Khadr access blocked, prompting media court challenge

After nearly two years of failed attempts to access Omar Khadr, the Star goes to federal court, arguing a constitutional breach of the public's right to know.

Omar Khadr walks the grounds of Camp 4 in Guantanamo Bay in November 2009. Canadian prison officials are refusing to let the public hear from Khadr, who was transferred to Canada in 2012, repeatedly denying interview requests. (Michelle Shephard / Toronto Star File Photo)

Canadian prison officials are refusing to let the public hear from former Guantanamo detainee Omar Khadr, repeatedly denying interview requests despite the fact that Khadr is willing to talk after 12 years of custody and may soon be released.

After nearly two years of failed attempts to access Khadr, the Toronto Star, CBC and White Pine Pictures will ask a federal court Tuesday to review the actions of Correctional Service Canada, arguing that denying interviews breaches the constitutional guarantee of the public’s right to know.

One federal penitentiary warden refused a Star request, stating it was for Khadr’s own good so as to not increase his “notoriety,” despite the fact that Prime Minister Stephen Harper and public safety ministers often comment publicly on the case. At Bowden Institution, where 27-year-old Khadr is currently being held, the warden denied access, citing concerns that an interview would disrupt the facility’s operations or expose the prison staff to risk, although Khadr has been granted numerous other visits from the public.

In another instance, a warden at Millhaven Institution approved a request for an interview only to be overruled 90 minutes later by then-Public Safety Minister Vic Toews, indicating political interference in a process that should be independent.

“What is it about what Omar Khadr has to say that has the government afraid?” Khadr’s lawyer Dennis Edney said in an interview. “The Harper government has spent years wrongly portraying Omar Khadr to the Canadian public, while ensuring he is unable to respond. It is in the public’s interest that Canadians see and hear from him so they can make up their own minds.”

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Khadr’s case has captivated and divided Canadians since July 2002, when he was shot and captured at the age of 15 during a firefight with American forces in Afghanistan, but he has never been interviewed.

U.S. Sergeant First Class Layne Morris, who was blinded in one eye during the 2002 firefight and has since retired from the military, is among those who want to see Khadr questioned on camera. “I’d love to hear what he’s going to say and I’d love to be able to make a judgment on what I think about what he has to say,” Morris said during an interview in Utah late last year.

Morris said he is not surprised to hear Khadr is eligible for full parole and could be released this year. “On some level, you have to say, OK, the kid was 15 and regardless of what he’s become he at least deserves a chance,” Morris said. “If Omar Khadr demonstrates by his actions that he wants to be a contributing member to western society — you know, get a job, white picket fence, all that kind of stuff — then at some point, yeah he probably does deserve a shot at that.”

Khadr was transferred to Canada in September 2012 and has been eligible for parole since last July, but has not yet applied. His statutory release date is in 2016, having served two-thirds of his sentence.

While much has been reported on Khadr, the divisive nature of his case has made him a symbol for both far right and left — a caricature — portrayed alternatively as an unrepentant terrorist and a modern-day Nelson Mandela.

The Pentagon charged Khadr with five war crimes in 2005, including murder in violation of the laws of war for the fatal wounding during the firefight of U.S. Delta Force soldier Christopher Speer.

In October 2010, Khadr accepted a Pentagon plea deal that gave him an eight-year sentence and a chance to be transferred to Canada if he confessed to throwing the grenade that killed Speer. Khadr recently recanted, saying he could not remember the firefight and believed accepting the deal was the only way he would get out of Guantanamo.

Edney said Khadr agreed to an interview with the Star in May 2013, and signed a prison consent form for an exclusive recorded interview, which would appear in the Star, and a companion documentary to be aired on CBC Doc Zone.

The interview was designed in part to minimize concerns the warden may have about the disruption of prison operations, and Edney has offered the time normally scheduled for legal consultations to have Khadr questioned on camera.

But wardens at the federal penitentiaries in Millhaven and Edmonton, as well as the Bowden Institution have consistently refused access.

Last July, Khadr filed a grievance with Edmonton Institution warden Kelly Hartle over the refusal. Two weeks later, Hartle replied that staying quiet would be in Khadr’s best interest since a “reduction of public notoriety would be necessary as part of your rehabilitation process.”

However, Harper and Public Safety Minister Steven Blaney and former minister Toews have repeatedly commented on the Khadr case calling him a “known supporter of the Al Qaeda terrorist network,” and a “convicted murderer.” These comments are rare considering Khadr has a multimillion-dollar lawsuit against the government and politicians usually decline to comment when cases are before the courts.

“Freedom of the press and freedom of expression are cornerstone rights in a democracy. In our view, freedom of expression includes not only Mr. Khadr’s rights to express himself, but also the public’s right to hear from Mr. Khadr,” said Sukana Pillay, executive director of the Canadian Civil Liberties Association. “In this particular case, the government has repeatedly expressed its views on Mr. Khadr’s case and it is only fair play in a democracy that other voices — including Mr. Khadr himself — have equal air time.”

Government sources who have worked closely on this case throughout the last decade — but who would only speak without being named for fear of reprisals — say it is well known among bureaucrats that Harper has a personal interest in Khadr and the Prime Minister’s Office monitors the case closely.

Documents obtained last year by The Canadian Press through the Access to Information Act provide a glimpse at the high-level political involvement in the case.

An exchange of emails shows that the public safety minister’s office rejected a 2012 interview request for Khadr by the CP — despite the fact that the warden had given the green light.

Under normal circumstances, an interview can take place if an inmate agrees, and a warden satisfies the conditions of a Corrections Canada policy known as Commissioner’s Directive 022. The directive states that the interview must be conducted “with minimal disruption” to the facility and must not pose a risk to the safety of the prison staff, inmate, visitors or victims.

But an email from Toews’ director of communications stating, “This interview is not approved,” overruled the decision by Millhaven warden Kevin Snedden to grant the CP’s telephone interview request.

A public servant familiar with the file told the CP this was highly unusual and that the case is “subjected to significant and extraordinary scrutiny from (Corrections Services Canada’s) national headquarters and overt political interference.”

Another document, according to the CP, noted that Harper’s own department “immediately flagged the initial interview application, and asked to be kept in the loop.”

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